Whether refund claim filed within period extended by subsequent notification time barred?

PJ/CASE LAW/2015-16/2754

Case:-RAYMOND LTD. VERSUSCOMMISSIONER OF C. EX., MUMBAI-III

Citation:- 2015 (38) S.T.R. 441 (Tri. - Mumbai)

Brief Facts:-The appellant, M/s. Raymond Ltd., Textile Division, Thane filed refund claims towards refund of Service Tax paid by them and used in or in relation to the manufacture of the exported textile products for the quarter October-December, 2008. The refund claim was filed by them on 30-7-2009. The said claim was rejected as time-barred by the adjudicating authority vide order dated 4-12-2009. Against the said decision, the appellant filed an appeal before the lower appellate authority who vide the impugned order has rejected their appeal and hence the appellant is before the tribunal.

Appellants Contention:-The learned counsel for the appellant submits that time period for filing the refund claims under Notification No. 41/2007-S.T., dated 6-10-2007 has been extended to one year from the date of export of the said goods, vide Notification No. 17/2009-S.T., dated 7-7-2009 and as such, the refund claim has been filed within one year from the date of export of the goods. The amended provisions would apply and the rejection of the claim on account of time-bar is not sustainable in law. The learned counsel relies on the decision of the Hon’ble High Court of Bombay in the case of Uttam Steel Ltd.v.Union of India- 2003 (158)E.L.T.274 (Bom.)wherein a similar issue arose and the Hon’ble High Court held that when the amended statute alters the existing practice and procedure of enforcing the substantive rights, then the amended procedure would apply for enforcement of the substantive rights existing on the date when the amended provisions came into force. Accordingly, it was held that limitation of one year provided by amendment to Section 11B w.e.f. 12-5-2000 would apply retrospectively and would cover exports made one year prior to 12-5-2000. In other words, it was held that the amended limitation of one year w.e.f. 12-5-2000 would apply to all exports, made after 12-5-1999. Applying the ratio of the said decision to the present case, so long as the refund claims have been filed within one year from the date of export, the benefit of Notification 41/2007 has to be extended to the appellant. The learned counsel further relies on the decision of this Tribunal in the case of SandozPolymers Pvt. Ltd.v. Commissioner of Service Tax, Ahmedabad- 2013 (30)S.T.R.527wherein an identical issue arose and this Tribunal held that the extended period of one year would apply for consideration of the refund claim and accordingly refund claim was allowed.
The learned counsel also refers to Circular No. 112/6/2009, dated 12-3-2009 wherein the Board issued clarifications when the time-limit was extended from 60 days to six months. The issue raised and clarification given is reproduced verbatim below :

“S. No.	Issue Raised	Clarification
I	Notification No. 41/2007-S.T. has been amended by notification Nos. 32/2008-S.T., dated 18-11-2008 and 33/2008-S.T., dated 7-12-2008 to (i) extend the limitation period from 60 days from the end of quarter to six months; (ii) to omit the condition of non-availment of drawback. Whether, in view of amended conditions, refund for the quarter Mar-Jun 08 would be allowed to be filed till Dec., 08?	It is clarified that consequent upon revision of limitation period, any refund claim that is filed within such revised limitation period would be admissible if it is otherwise in order. Therefore, refund claims of service tax on specified taxable services used for exports of goods made in the quarter Mar-Jun 08 could be filed till 31st Dec. 08.”

Thus, when the time-limit was extended from 60 days to six months, the Board had clarified that if the refund claim is filed within six months, the assessee would be eligible for benefit of the same subject to satisfaction of the other conditions. The same logic and clarification would apply when the time-limit is extended from six months to one year. In view of the above he prays for setting aside the impugned order and allowing the appeal.

Respondents Contention:-The learned Superintendent (AR) appearing for the Revenue reiterates the findings of the lower authorities and submits that the Notification has to be interpreted strictly and, therefore, when the time-limit stipulated for filing of the refund claim was six months, the appellant ought to have filed the refund claims within the period of six months. The appellant filed refund claims beyond the period of six months and, therefore, the appellant is not eligible for the benefit of the refund claims filed beyond the prescribed period.

Reasoning of Judgement:-The tribunal have carefully considered the submissions made by both the sides. In the present case the refund claim pertains to the quarter October-December, 2008. The appellant have filed the refund claims on 30-7-2009 for the refund under Notification 41/2007-S.T. The said Notification was amended vide Notification No. 17/2009, dated 7-7-2009 so as to allow filing of the refund claim within a period of one year from the date of export of the goods. Inasmuch as the appellant filed the refund claims in July, 2009 for the quarter ending October-December, 2008, the refund claims are within a period of one year from the date of export of the goods. Therefore, the appellant would be eligible for the benefit of refund under the aforesaid Notification subject to satisfaction of other conditions stipulated in the Notification. The Hon’ble High Court of Bombay, which is the jurisdictional High Court, in the case of Uttam Steel Ltd. (supra) has held that when procedure and practice are amended they have to be amended retrospectively and the benefit allowed if the procedures are satisfied. This Tribunal in the case of Sandoz Polymers Pvt. Ltd.(supra) has also held the same view. Further, the C.B.E. & C. in Circular dated 12-3-2009 cited supra, have also held that so long as the refund claims is filed within the extended period of time provided for in the Notification, the assessee would be eligible for the benefit of refund, subject to satisfaction of other conditions stipulated in the Notification. Following the above decisions, tribunal hold that, in the present case also, the appellant is eligible for the benefit of refund claim filed under Notification No. 41/2007 as amended by Notification No. 17/2007 and the time bar aspect is not attracted. However, the appellant has to satisfy that they have fulfilled the other conditions stipulated in the Notification. Therefore, the matter is remanded back to the original adjudicating authority only for satisfying that the appellant has fulfilled the other terms and conditions stipulated in Notification No. 41/2007 and the time-bar issue will have no application. The appeal is disposed of in the above terms.

Decision:-Case remanded.

Comment:- The crux of the case is that if the time limit to file refund claim is extended then the extended time period is applicable even for the refund claims of prior period subject to fulfillment of other conditions of the notification. This is for the reason that the procedural amendments are to be construed as having retrospective application. This was based on the landmark decision in the case of Bombay High Court in the case of Uttam Steel Ltd. v. Union of India.

Prepared By:- Neelam Jain

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PJ/CASE LAW/2015-16/2754

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